Citation Nr: 0403463
Decision Date: 02/06/04 Archive Date: 02/11/04
DOCKET NO. 03-01 399 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for bilateral plantar
lesions.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Darryl M. Springer, Law Clerk
INTRODUCTION
The veteran had active service from November 1975 to November
1979.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision by the Department of
Veterans Affairs (VA) Columbia, South Carolina Regional
Office (RO).
A Travel Board hearing was scheduled before a Veterans Law
Judge of the Board in February 2004 pursuant to the veteran's
request. The veteran sent correspondence dated January 2004
indicating that he was unable to attend the hearing. As the
veteran will not appear for the Board hearing, and a request
for a rescheduling has not been received, this case is being
processed as though the hearing request has been withdrawn.
See 38 C.F.R. § 20.702. Furthermore, the veteran's
representative has submitted an informal brief on the issue
on appeal, which was received by the Board in January 2004.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
In this case, the veteran is claiming that his currently
diagnosed bilateral plantar lesions originated while he was
on active duty in the United States Marine Corps.
Service medical records reveal that the veteran had no
complaints of, treatment for or diagnosis of bilateral
plantar lesions on enlistment examination of July 1975 and on
separation examination of October 1979. On both examinations
the veteran's feet were evaluated as normal. On a service
medical record of June 1979, however, the veteran reported
holes between the fourth and fifth digits of his left foot.
The impression was tinea pedis.
Private medical reports from March 2000 to July 2002 show
that the veteran complained of and was treated for painful
corns and calluses. A March 2003 report showed that the
veteran had deeply seated, hyperkeratotic lesions beneath the
first and fifth metatarsophalangeal joint of the right and
beneath the first and between the fourth and fifth
metatarsophalangeal joint on the left. The veteran also had
significantly deeply seated, hyperkeratotic lesion at the tip
of the fourth digit on the right foot. Upon debridement of
the lesions there was no underlying ulceration or infection.
The assessment was hammertoes and porokeratosis bilaterally.
The veteran continued to receive follow up treatment for his
painful lesions.
In August 2001 the veteran had surgery on the fifth toe of
both feet and syndactylization of the fourth and fifth digits
of the left foot. The postoperative course was complicated
by a small soft tissue infection, which resolved on oral
antibiotics and local wound care.
An April 2002 private medical report showed that the veteran
was continuing to have discomfort on a regular basis. The
assessment was multiple, painful plantar porokeratomas. The
veteran continued to receive treatment for the porokeratomas
and there was no evidence of secondary bacterial infection.
A letter dated June 2002, from a private doctor of podiatric
medicine, reported that he saw the veteran in March 2000 with
complaints of multiple painful plantar lesions. The veteran
reported that the symptoms were going on for many years and
had progressed to the point where he was having intense
discomfort and the inability to work an entire day without
severe pain. He reported that a previous attempt at digital
surgery on the second and fourth toe of both feet were
unsuccessful. The examiner reported that the lesions were
biomechanical in nature and was most likely complicated by
long periods of standing and walking. The examiner reported
that the veteran's military service probably compounded his
deformity by aggravating the symptoms and, in fact could have
contributed to the worsening of the condition. The examiner
also reported that the remaining lesions were less likely to
improve despite surgical procedures.
A letter dated August 2003 from a private doctor of podiatric
medicine reported that the veteran's lesions were due to
prolonged ambulation and it was likely that they were
aggravated by the veteran military service.
Therefore, to assist in the development of the veteran's
claim, an appropriate VA examination(s) should be provided to
ascertain the nature of any bilateral plantar lesions and the
etiology of the claimed disorder and any relationship with
the veteran's service.
Finally, prior to the claim leading to this appeal, the
Veterans Claim Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (VCAA), was signed into law.
38 U.S.C.A. § 5100 et seq. (West 2002). To implement the
provisions of the law, VA promulgated regulations published
at 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). While
the new law and regulations have been provided to the
veteran, in order to continue to comply with the VCAA, on
Remand, the RO must assure that the provisions of this new
Act are complied with, including the notification requirement
set forth in the new law. See Quartuccio v. Principi, 16
Vet. App. 183 (2002).
Accordingly, this matter is REMANDED to the RO for the
following:
1. The RO should send a letter to the
veteran and his representative
informing them of the pertinent
provisions of the VCAA. Specifically,
it should be indicated which of the
parties is responsible for obtaining
which evidence. The notice provided
should also be in accord with the
aforementioned Court cases,
38 U.S.C.A. §§ 5102, 5103, 5103A,
(West 2002), and any other applicable
legal precedent. See Quartuccio,
supra. As part of this notice, the
appellant should be offered an
opportunity to provide information
concerning any treatment he has had
for his feet since separation from
service. He should be invited to
provide information concerning names,
locations, and approximate dates of
treatment. The RO should then attempt
to obtain clinical records from any
named provider. To the extent needed,
appellant should provide assistance in
obtaining the information as needed.
If the appellant knows of no
additional records, he should so note.
If an attempt is made to obtain
records and is unsuccessful, that too
should be noted in the claims file.
2. Thereafter, and whether or not records
are obtained, the veteran should be
afforded appropriate VA examination(s)
to include dermatological, orthopedic,
and podiatric findings regarding the
claim for service connection for
bilateral plantar lesions. The claims
folder should be made available to the
examiner(s) for review prior to the
examination(s). The examination(s)
must encompass a detailed review of
the veteran's relevant history and
current complaints, as well as a
comprehensive clinical evaluation and
any diagnostic testing deemed
necessary by the examiner(s) to
determine the date of onset and the
relationship, if any, of bilateral
plantar lesions to the veteran's
service. The examiner(s) should
indicate whether the veteran currently
has a diagnosis of bilateral plantar
lesions and if so, is it at least as
likely as not that the veteran has
current bilateral plantar lesions that
are related to his service or the in-
service 1979 treatment for bilateral
tinea pedis. If any manifested
chronic disability cannot be medically
linked or attributed to the veteran's
military service on a medical
scientific basis, and without invoking
processes relating to guesses or
judgments based upon mere conjecture,
the examiner should clearly and
specifically so indicate in the
examination report.
3. After completion of the requested
development, the RO should review the
veteran's claims on the basis of all
the evidence of record. If the action
taken remains adverse to the veteran
in any way, he and his representative
should be furnished an appropriate
Supplemental Statement of the Case
(SSOC).
The SSOC should additionally include
consideration and a discussion of
38 C.F.R. § 3.655 if the veteran fails
to appear for a scheduled examination.
In such case, the RO should include a
copy of the notification letter in the
claims file as to the date the
examination was scheduled and the
address to which notification was
sent. If a copy of the letter cannot
be obtained, personnel at the VA
medical center should certify the
address to which the letter was sent,
and provide information that it was
not returned as undeliverable.
The SSOC should additionally include a
discussion of all evidence received
since the last statement of the case
was issued. The veteran and his
representative should then be afforded
an opportunity to respond.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).